USA v. Champagne

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, )
)
Plaintiff, ) ORDER GRANTING DEFENDANT’S
) MOTION FOR COMPASSIONATE
vs. ) RELEASE
)
Ambrose Lewis Champagne, ) Case No. 4:97-cr-089
)
Defendant. )
______________________________________________________________________________
Before the Court is Defendant Ambrose Champagne’s motion to reduce sentence and amended
motion to reduce sentence under 18 U.S.C. § 3582(c)(1)(A), filed on October 17, 2019, and March 23,
2020, respectively. See Doc. Nos. 95 and 101. The Government filed a response to the motion on
April 3, 2020. See Doc. No. 106. For the reasons set forth below, the motion is granted.
I. BACKGROUND
On December 2, 1997, a federal grand jury indicted Champagne on one count of being a felon
in possession of ammunition and one count of assault resulting in serious bodily injury. See Doc. No.
1. On February 26, 1998, a jury found Champagne guilty on both counts. See Doc. No. 38.
The Presentence Investigation Report (“PSR”) noted Champagne was an armed career criminal
under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and outlined his prior convictions: (1) 1962
conviction for assault with a dangerous weapon in United States District Court for the District of North
Dakota; (2) 1970 conviction for burglary in United States District Court for the District of North
Dakota; (3) 1971 conviction for first degree murder in Rolette County District Court in North Dakota;
and (4) 1989 conviction for assault resulting in serious bodily injury in the United States District Court
for the District of North Dakota. See PSR, pp. 7-8; Doc. Nos. 77-1 through 77-7. The PSR noted
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Champagne was subject to a Sentencing Guideline range of 360-months to life imprisonment (total
offense level 37 and criminal history category VI). See PSR, p. 9. In his motion to reduce sentence,
Champagne contends the Sentencing Guideline range was calculated incorrectly. Champagne
maintains the correct Sentencing Guideline range 262-327 months (total offense level 34 and criminal
history category VI). See Doc. No. 96, pp.4-5.
On May 20, 1998, the Court1 sentenced Champagne to 360-months of imprisonment. See Doc.
Nos. 48 and 49. Champagne appealed, and the Eighth Circuit Court of Appeals affirmed. See United
States v. Champagne, 168 F.3d 495 (8th Cir. 1999). On September 4, 2001, Champagne filed a motion
under 28 U.S.C. § 2255. See Doc. No. 62. On October 2, 2001, the Court denied the motion. See Doc.
No. 67.
On June 21, 2016, the Eighth Circuit Court of Appeals granted Champagne’s petition for
authorization to file a successive habeas application in the district court. See Doc. No. 71. On June
22, 2016, Champagne filed a second Section 2255 motion, citing the recent opinion of the United States
Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), as the basis for the motion. See
Doc. No. 73. Champagne contends that, in the wake of Johnson, he does not have the three necessary
predicate convictions to qualify as an armed career criminal under the Armed Career Criminal Act
(“ACCA”). On July 18, 2017, this Court denied the motion after finding that all four of his prior
convictions qualified as violent felonies under the ACCA. See Doc. No. 84.
Champagne appealed and on February 8, 2019, the Eighth Circuit Court of Appeals issued an
opinion vacating this Court’s order denying Champagne’s motion under 28 U.S.C. § 2255 and
remanding for further proceedings. Champagne v. United States, 750 F. App’x 518, 519 (8th Cir.
1The trial and sentencing were presided over by the Hon. Patrick A. Conmy.
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2019). The Eighth Circuit explained the purpose of the remand was “for the district court to determine
whether Champagne has shown by a preponderance of the evidence that his successive § 2255 claim
relies on Johnson’s new rule invalidating the residual clause.” Id. The Court ordered additional
briefing in light of the remand by the Eighth Circuit. See Doc. Nos. 92, 93, and 94. However, in
anticipation of a motion to reduce sentence, the parties asked the Court to delay resolution of the
remanded Section 2255 motion, as resolution of the motion to reduce sentence was expected to moot
the underlying Section 2255 motion. The motion to reduce sentence has now been filed and fully
briefed and is ripe for consideration.
II. LEGAL DISCUSSION
18 U.S.C. § 3582(c)(1)(A) allows the Court to modify a term of imprisonment under two
circumstances: by motion of the Director of the BOP or upon motion of the Defendant “after the
defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to
bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by
the warden of the defendant’s facility, whichever is earlier.” It is undisputed Champagne has exhausted
his administrative remedies. See Doc. No. 109. The only reason given by the BOP for denying
Champagne’s request for a sentence reduction under the First Step Act was that he did not have a
release plan.
In considering a motion to reduce sentence, the Court must assess whether, after considering
the 18 U.S.C. § 3553(a) factors, “extraordinary and compelling reasons” exist which warrant a sentence
reduction, and if a sentence reduction is consistent with the Sentencing Commission’s applicable policy
statement. See 18 U.S.C. § 3582(c)(1)(A). There is no right to counsel in Section 3582(c) proceedings.
United States v. Brown, 565 F.3d 1093, 1094 (8th Cir. 2009). Nor is there a right to a hearing. See
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Dillon v. United States, 560 U.S. 817, 827-28 (2010) (observing that, under Federal Rule of Criminal
Procedure 43(b)(4), a defendant need not be present at a proceeding under Section 3582(c)(2) regarding
the imposition of a sentencing modification). It should also be noted that the CARES Act does not
provide the Court with any expanded authority to grant a motion to reduce sentence under 18 U.S.C.
§ 3582(c). See CARES Act, Pub. L. No. 116-136, 134 Stat 281 (2020).
Prior to the passage of the First Step Act in 2018, district courts could only grant compassionate
release sentence reductions based upon a motion filed by the director of the BOP. Such motions were
rarely filed. This all changed when the President signed the First Step Act into law on December 21,
2018. The relevant portion of the new law now reads as follows:
(c) Modification of an imposed term of imprisonment.--The court may not modify
a term of imprisonment once it has been imposed except that–
(1) in any case–
(A) the court, upon motion of the Director of the Bureau of Prisons, or upon
motion of the defendant after the defendant has fully exhausted all
administrative rights to appeal a failure of the Bureau of Prisons to bring a
motion on the defendant's behalf or the lapse of 30 days from the receipt of such
a request by the warden of the defendant's facility, whichever is earlier, may
reduce the term of imprisonment (and may impose a term of probation or
supervised release with or without conditions that does not exceed the unserved
portion of the original term of imprisonment), after considering the factors set
forth in section 3553(a) to the extent that they are applicable, if it finds that–
(i) extraordinary and compelling reasons warrant such a reduction;
and that such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission;
18 U.S.C.A. § 3582(c)(1)(A)(I) (emphasis added).
Unfortunately, the First Step Act does not define “extraordinary and compelling reasons.” The
Sentencing Commission’s policy statement can be found at Section 1B1.13 of the 2018 Sentencing
Guidelines Manual. The policy statement requires a finding that a claimant meets three requirements:
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1) extraordinary and compelling reasons warrant the reduction; 2) the defendant is not a danger to the
community; and 3) the reduction follows the Sentencing Commission’s policy statement. USSG §
1B1.13. However, the policy statement pertains to the old law rather than the new law and thus is of
questionable applicability. See United States v. Beck, No. 1:13-CR-186-6, 2019 WL 2716505, at *6
(M.D.N.C. June 28, 2019) (concluding the old policy statement provides helpful guidance but does not
control the district court’s independent assessment of whether “extraordinary and compelling reasons”
warrant a sentence reduction.). This Court agrees that the Sentencing Commission’s existing policy
statement provides only limited guidance. See United States v. Fox, No. 2:14-CR-03, 2019 WL
3046086, at *3 (D. Me. July 11, 2019). In addition, the Sentencing Commission will not be publishing
a 2019 or 2020 Sentencing Guidelines Manual for lack of a quorum. Beck, No. 1:13-CR-186-6, 2019
WL 2716505, at *5 n.7.
The Application Note to U.S.S.G. § 1B1.13 provides as follows:
1. Extraordinary and Compelling Reasons.--Provided the defendant meets the
requirements of subdivision (2), extraordinary and compelling reasons exist
under any of the circumstances set forth below:
(A) Medical Condition of the Defendant.--
(i) The defendant is suffering from a terminal illness (i.e., a serious
and advanced illness with an end of life trajectory). A specific
prognosis of life expectancy (i.e., a probability of death within
a specific time period) is not required. Examples include
metastatic solid-tumor cancer, amyotrophic lateral sclerosis
(ALS), end-stage organ disease, and advanced dementia.
(ii) The defendant is–
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive
impairment, or
(III) experiencing deteriorating physical or mental health
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because of the aging process,
that substantially diminishes the ability of the defendant to
provide self-care within the environment of a correctional
facility and from which he or she is not expected to recover.
(B) Age of the Defendant.--The defendant (i) is at least 65 years old; (ii) is
experiencing a serious deterioration in physical or mental health because
of the aging process; and (iii) has served at least 10 years or 75 percent
of his or her term of imprisonment, whichever is less.
(C) Family Circumstances.--
(i) The death or incapacitation of the caregiver of the
defendant's minor child or minor children.
(ii) The incapacitation of the defendant's spouse or registered
partner when the defendant would be the only available
caregiver for the spouse or registered partner.
(D) Other Reasons.--As determined by the Director of the Bureau of
Prisons, there exists in the defendant's case an extraordinary and
compelling reason other than, or in combination with, the reasons
described in subdivisions (A) through (C).
2. Foreseeability of Extraordinary and Compelling Reasons.--For purposes of
this policy statement, an extraordinary and compelling reason need not have
been unforeseen at the time of sentencing in order to warrant a reduction in the
term of imprisonment. Therefore, the fact that an extraordinary and compelling
reason reasonably could have been known or anticipated by the sentencing court
does not preclude consideration for a reduction under this policy statement.
3. Rehabilitation of the Defendant.--Pursuant to 28 U.S.C. § 994(t),
rehabilitation of the defendant is not, by itself, an extraordinary and compelling
reason for purposes of this policy statement.
4. Motion by the Director of the Bureau of Prisons.--A reduction under this
policy statement may be granted only upon motion by the Director of the Bureau
of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A). The Commission encourages
the Director of the Bureau of Prisons to file such a motion if the defendant
meets any of the circumstances set forth in Application Note 1. The court is in
a unique position to determine whether the circumstances warrant a reduction
(and, if so, the amount of reduction), after considering the factors set forth in 18
U.S.C. § 3553(a) and the criteria set forth in this policy statement, such as the
defendant's medical condition, the defendant's family circumstances, and
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whether the defendant is a danger to the safety of any other person or to the
community.
This policy statement shall not be construed to confer upon the defendant any
right not otherwise recognized in law.
5. Application of Subdivision (3).--Any reduction made pursuant to a motion by
the Director of the Bureau of Prisons for the reasons set forth in subdivisions (1)
and (2) is consistent with this policy statement.
U.S.S.G. § 1B1.13.
Champagne contends he satisfies the Sentencing Guideline criteria for extraordinary and
compelling reasons based upon his age and medical conditions. A defendant will qualify for a sentence
reduction based upon his age if he is: (i) at least 65 years old; ii) experiencing a serious deterioration
in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75
percent of his term of imprisonment, whichever is less. U.S.S.G. § 1B1.13, comment. n. 1(B). Health
problems qualify if they are serious and substantially diminish the ability to provide for self-care.
U.S.S.G. § 1B1.13, comment. n. 1(A)(ii). It is undisputed Champagne meets both of these criteria.
Champagne is a 77-year old man who has been in federal custody since December 1997. He
has served approximately 271 months of his 360 month sentence (75.27%). His presumptive release
date per the BOP website is June 5, 2023. He is serving his sentence at the FMC Rochester. He has
been at FMC Rochester since 2011. He is classified at a Care Level 4 which is the highest level of care.
Inmates classified a Care Level 4 “may be so severely impaired as to require 24-hour skilled nursing
care or nursing assistance.” See Doc. No. 102-4, p. 5. His undisputed medical problems include the
following:
He has been diagnosed with chronic osteomyelitis, type 2 diabetes, hypertension,
disease of the esophagus, and acute kidney failure. Individually, each is sufficiently
serious to warrant compassionate release. Specifically, his medical records detail
treatment for Champagne’s chronic osteomyelitis in his right tibia. These treatments
have been ongoing for several years. Recently, he underwent a debridement procedure,
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which involved surgically removing the infected parts of his bone. Champagne’s
osteomyelitis is serious enough to possibly require amputation of his leg.
Champagne’s multifactorial neurocognitive disorder is sufficiently serious to warrant
compassionate release. He has been diagnosed with mild cognitive impairment,
dementia, and likely Alzheimer’s disease. These conditions go beyond the expected
cognitive decline of normal aging.
See Doc. No. 102 at pp. 7-8. His dementia makes it difficult for him to provide self-care. See Doc. No
105. pp. 7, 100, 102, and 105.
Based upon his advanced age, inability to care for himself, and dementia, there is little doubt
Champagne no longer represents a danger to the community. Champagne has had few serious
disciplinary issues while incarcerated and the BOP has consistently lowered his security classification.
A person’s physical and medical condition are factors in determining community danger. See 18
U.S.C. § 3142(g)(3)(A). Champagne has a troubling criminal history, but after spending the last 23
years in prison and at 77 years of age with serious health problems, he is not the same man he was
when he was sentenced.
The Court has carefully reviewed the entire record and concludes Champagne has clearly
demonstrated “extraordinary and compelling reasons” that would warrant a sentence reduction. See
United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016) (the burden is on the defendant to establish
a sentence reduction is warranted under 18 U.S.C. § 3582(c)(2)). The Court has also carefully
considered each of the Section 3553(a) sentencing factors and incorporates by reference into this
assessment all of the docket entries in the case that address these sentencing factors. The Section
3553(a) factors also justify a compassionate release.
III. CONCLUSION
For the reasons set forth above, the Defendant’s motion to reduce sentence (Doc. Nos. 95 and
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101) is GRANTED. The Court finds the Defendant’s motion for Section 2255 relief to be moot.
Champagne’s sentence is reduced to a sentence of “time served.” The term of supervised release
remains five (5) years. The originally ordered conditions of supervised release remain in effect along
with the additional conditions set forth below.
1. The defendant shall not leave the judicial district without permission of the court
or probation officer.
2. The defendant shall report to the probation officer in a manner and frequency
directed by the court or probation officer.
3. The defendant shall answer truthfully all inquiries by the probation officer and
follow the instruction of the probation officer.
4. The defendant shall support his or her dependent and meet other family
responsibilities.
5. The defendant shall work regularly at a lawful occupation, unless excused by the
probation officer for schooling, training, or other.
6. The defendant shall notify the probation officer at least ten days prior to any
change in residence or employment.
7. The defendant shall refrain for excessive us of alcohol and shall not purchase,
possess, use, distribute, or administer any controlled substance or any
paraphernalia related to any controlled substances, except as prescribed by a
physician.
8. The defendant shall not frequent places where controlled substances are illegally
sold, used, distributed, or administered.
9. The defendant shall not associate with any persons engaged in criminal activity
and shall not associate with any person convicted of a felony, unless granted
permission to do so by the probation officer.
10. The defendant shall permit the probation officer to visit him or her at any time
at home or elsewhere and shall permit the confiscation of any contraband
observed in plain view of the probation officer.
11. The defendant shall notify the probation officer within seventy-two hours of
being arrested or questioned bu a law enforcement officer.
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12. The defendant shall not enter into any agreement to act as an informer or special
agent of a law enforcement agency without the permission of the court.
13. As directed by the probation officer, the defendant shall notify third parties of
risks that may be occasioned by the defendant's criminal record or personal
history or characteristics and shall permit the probation officer to make such
notifications and to confirm the defendant's compliance with such notification
requirement.
14. You must participate in a program aimed at addressing specific interpersonal or
social areas, for example, domestic violence, anger management, marital
counseling, financial counseling, cognitive skills, parenting, at the direction of
your supervising probation officer.
15. As directed by the Court, if during the period of supervised release the
supervising probation officer determines you are in need of placement in a
Residential Re-Entry Center (RRC), you must voluntarily report to such a
facility as directed by the supervising probation officer, cooperate with all rules
and regulations of the facility, participate in all recommended programming, and
not withdraw from the facility without prior permission of the supervising
probation officer. The Court retains and exercises ultimate responsibility in this
delegation of authority to the probation officer.
16. You must submit your person, residence, workplace, vehicle, computer
(including password), and/or possessions to a search conducted by a United
States Probation Officer based upon reasonable suspicion of a violation of a
condition of supervision. Failure to submit to a search may be grounds for
revocation, additional criminal charges, and arrest. You must notify any other
residents that the premises may be subject to searches pursuant to this condition.
17. You must participate in a chemical dependency treatment program as approved
by the supervising probation officer.
18. You must totally abstain from the use of alcohol and illegal drugs or the
possession of a controlled substance, as defined in 21 U.S.C. § 802 or state
statute, unless prescribed by a licensed medical practitioner; and any use of
inhalants or psychoactive substances (e.g., synthetic marijuana, bath salts, etc.)
that impair your physical or mental functioning.
19. You must submit to drug/alcohol screening at the direction of the United States
Probation Officer to verify compliance. Failure or refusal to submit to testing
can result in mandatory revocation. Tampering with the collection process or
specimen may be considered the same as a positive test result.
20. The defendant shall participate in a mental health program as directed by his
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probation officer and shall take all medications as prescribed by a licensed
physician.
IT IS SO ORDERED.
Dated this 25th day of June, 2020.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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